Beyond Covid-19: the legal landscape in the health and social care sector

This article considers what will happen in the health and social care sector in terms of regulation and litigation beyond the Covid-19 crisis.

CQC’s Emergency Support Framework

As providers will know, CQC have paused routine inspections and introduced the Emergency Support Framework (“ESF”). CQC’s position is that the ESF is a flexible and supportive process, it is not an inspection and a provider’s performance is not being rated. However, CQC also state that they might carry out a focused inspection, if serious concerns are raised during the ESF telephone conversation. Therefore, it is quite clear that this is much more than a supportive conversation.

The ESF focuses on gathering information from providers in relation to the following areas:

  1. Safe care and treatment

Under this area, CQC consider infection prevention control, access to and availability of PPE and environmental safety for service users, staff and visitors. CQC may also look at management of medicines to see if medicines are being managed appropriately despite the increased pressures of the Covid-19 pandemic. CQC will also assess risk management to determine if it is continuing and responding in a robust way to the new and emerging risks posed by Covid-19.

  1. Staffing arrangements

CQC will determine whether a service has sufficient numbers of suitably skilled staff and a strong workforce plan to manage any shortfalls. CQC will also ask questions about recruitment and the use of agency staff.

  1. Protection from abuse

CQC will consider whether service users are protected from abuse and how the service is managing any safeguarding incidents.

  1. Assurance processes, monitoring and risk management

CQC will consider whether there is effective monitoring in place and whether staff health, safety and wellbeing is still paramount within the service and that there are systems in place for monitoring high quality care. CQC will also want to determine if staff are able to raise concerns and that the service is managing to maintain care records and that the provider is working well with system partners.

Future regulation and the implications of CQC’s ESF

The reason why I have considered CQC’s ESF, is because it indicates what areas CQC might consider retrospectively, when we approach the “new normal” and when routine inspections resume. For example, CQC’s ESF conversation will consider if a service has sufficient numbers of suitably skilled staff, this is clearly to see if a service is compliant with Regulation 18 which states that there must be, ‘Sufficient numbers of suitably qualified, competent, skilled and experienced persons.’ CQC is likely to consider if staffing ratios were complied with at all times during the crisis and this might impact on future ratings.

Over the last couple of years, CQC has taken a tough stance in relation to providers in terms of regulatory enforcement action and although CQC state that they are supporting providers, they should not be lulled into a false sense of security. Providers are still obliged to comply with the regulations and if a service is not deemed to be ‘safe’ or ‘well-led’ by CQC during the pandemic, the provider will still be accountable and will need to deal with the implications of this.

 

Future liability  

Beyond Covid-19, there is a possibility of the floodgates opening to claims and so it is crucial to properly consider risks associated with Covid-19 and mitigate against them. I will consider some areas for liability below:

Employee claims

Employers have a duty under the Health and Safety at Work etc. Act 1974 “to ensure, so far as is reasonably practicable, the health, safety and welfare” of all employees at work and employers are obliged to make a report under RIDDOR (The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013) in the event of a dangerous occurrence, a case of disease or a work related fatality.

A dangerous occurrence in the context of Covid-19 is an incident at work which has led to someone’s possible or actual exposure to coronavirus. In a healthcare setting such as a care home, a dangerous occurrence might relate to whether or not there is sufficient and appropriate Personal Protective Equipment (PPE).

  • PPE

Although there are issues around causation and difficulties in proving a causal link, the Health and Safety Executive (“HSE”) guidance on reporting of Covid-19 makes it clear, if there is “reasonable evidence” to show that a care worker was exposed to the virus through providing care and treatment to a service user diagnosed with the virus, this should be reported.

The issues regarding PPE have been widely reported on in the media, namely availability of PPE and suitability of it (in terms of PPE complying with regulatory standards and being fit for purpose). Future claims against employers could arise in relation to PPE. It is therefore important that providers have clear records of their attempts to procure PPE and details of any communications had with suppliers and local authorities. It is also important to have detailed records in relation to staff training and guidance on using PPE. Records should show that staff attended virtual training (because face to face training is not advised in light of government guidance).

It would be sensible for providers to have a coronavirus specific PPE policy in place at their service. Such a policy should be linked to national guidance on PPE and it should be regularly updated as and when the guidance changes.

  • Other employee claims

It is a very difficult and challenging time for all staff in care settings at the moment. Staff are working extremely hard, dealing with staff absences and having to make difficult clinical decisions. They are having to cope with an increased workload and many significant changes over very short periods of time. This may give rise to future claims in relation to psychiatric injury and work related stress.

CQC’s ‘Coronavirus (COVID-19) insight report’ published on 19 May 2020, reported that some registered managers of adult social care services are suffering from burn out and extreme anxiety and stress due to multiple deaths and financial worries.

Human rights issues

There are various human rights challenges that might arise following the coronavirus pandemic. The following Articles of the European Convention on Human Rights (“ECHR”) are likely to be impacted on:

  • Article 2 – right to life
  • Article 3 – freedom from inhuman or degrading treatment;
  • Article 8 – respect for a person’s individual autonomy (including their physical and psychological integrity) and their private and family life
  • Article 5 – no arbitrary deprivation of liberty
  • Article 14- protection from discrimination

CQC recently issued a reminder that the Mental Capacity Act 2005 and Deprivation of Liberty Safeguards remain in force and cannot be ignored simply because of coronavirus. There are various complexities in relation to dealing with service users who are unable to socially distance due to capacity reasons. There are also potential human rights issues in relation to services not being allowed to have visitors.

Coroners and inquests

Investigations carried out by a coroner in relation to Covid-19 deaths may take place if some human failure contributed to a person being infected with the virus or if some failure of clinical care of the person in their final illness contributed towards their death. This means that Covid-19 deaths in a care setting could be subject to a coroner’s investigation.

If staff are under increased pressure it becomes difficult to keep on top of things and this is likely to increase the risk of human error.

Non – Covid-19 related issues

CQC’s ‘Coronavirus (COVID-19) insight report’ reported that ‘we have particular concerns around people not being able to access services for non COVID-19 related issues.’ There is a risk that staff might take their eye off the ball in relation to issues in a service that do not relate to Covid-19. For example choking risks and falls’ risks. This could also give rise to future regulatory enforcement action.

Conclusion – what can providers and managers do now?

Government guidance changes rapidly and it is often difficult to interpret or too generic and not specific to each type of service. It would be helpful if providers designate one person to be responsible for keeping up with the latest guidance, considering how to apply it to their service, updating policies and procedures in light of the guidance and communicating the updates to staff on the ground. A detailed log indicating the title of the guidance, date of publication and a summary of the main points would be helpful.

In terms of future liability, there will be a time lag between what is happening now and future legal claims. Therefore, it is critical to have a paper trail and clear records as they will be looked at retrospectively. If you are concerned that record keeping was not as robust as it could have been and if reference has not been made to the specific government guidance relied on, now would be a good time to audit your records and look for any deficiencies in documentation. It is important to contextualise records in light of the coronavirus pandemic and explain the rationale behind the decision making process.

If providers are faced with enforcement action beyond the Covid-19 crisis, I would urge them to seek legal advice.